Confusion About the Freedom of Speech and Incitement to Violence

I’m having a hard time understanding the claim — if it is a claim, or perhaps it’s just the suggestion of a claim — by some in the media that the video, “The Innocence of Muslims” (discussed by my colleague Mark) is not protected by the freedom of speech. But I’m not a speech scholar, and the byways of speech law are as byzantine as any in the law.

What is it about the video that would not warrant free speech protection? I have not watched it, but I believe that the speech here relates to criticism — crude, ignorant, and thoughtless criticism, to be sure — of Islam, Muslim countries, and Muslim people. I will also assume that it is offensive to Muslims.

Offensiveness to particular constituencies, including religious constituencies, is not the test for speech protection. How could it be? One only has to read the newspaper to see offensive and ignorant commentary about religion and religious people produced all the time. That speech is clearly protected, and nobody — certainly not the LA Times — would ever suggest otherwise.

The claim in the LA Times piece seems to be that speech which is intended to incite violence is unprotected. The author of the op-ed is relying on the exception set out in the Brandenburg case, which permits regulation of speech where (1) the violence or illegal activity is imminent; (2) the speaker intends to cause the violence or illegal activity; and (3) the speech is likely to cause the violence or illegal activity. But I have questions about this.

First, what is the evidence that the video’s makers actually did intend to incite violence, as opposed to intending to say something provocative? In fact, I doubt that anybody intended to incite a violent mob to murder our diplomatic personnel in Libya, but before doing away with speech protections here, I’d like to see the evidence that they did. Second, what is the evidence of “imminence”? The best that the op-ed writer can come up with is that the video was published around September 11, and that “the timeline of similar events after recent burnings of religious materials indicates that reactions typically come within two weeks.” I had not thought that “imminence” is as context-dependent as this author suggests. In the law of self-defense, imminent means imminent, as in right now, immediate, not two weeks later, or perhaps even later than that. Third, I’ve always been curious about the third leg of the Brandenburg test. Why should a greater likelihood that a particular constituency will rise up in violence in response to provocative speech mean that the speech itself is less deserving of protection than speech which targets a constituency which is not likely to react violently to the offense? Does the third leg of the test not reward the sort of behavior that we have been witnessing? Does it not stimulate similar behavior? Perhaps a free speech expert can help me out.